Wednesday, January 8, 2014

Legal Advice for Utah Governor Gary Herbert

How I feel when legal "experts" make obviously stupid decisions.

Marriage equality has been much more than an uphill battle in recent years. It's been an unaided hoisting up a 90° slick wall. Seemingly nobody on our side except a small group of celebrity allies who seem more intent on using the gay community as a photo opportunity than a legitimate cause.

Wins aren't guaranteed. Just because a law is passed in a state doesn't mean a judge or a lawyer or a man in a suit somewhere won't undo said law. When I was told this past fall that gay marriage passed in Illinois, I was in disbelief. I'm told gay marriages will begin in June, but all I see is months full of time that the opposition can use to ensure I cannot get married this year.

That is what is happening in Utah right now. Starting December 20, 2013, gay marriage became legal in the state of Utah thanks to an epic decree by Federal Judge Robert J. Shelby. In his truly remarkable ruling, the judge cited that denial of marriage rights violated the Fourteenth Amendment, which guarantees equal due process and protection for all citizens. He also stated that there was no "rational reason" to deny same-sex couples equal marriage rights.

Read his entire ruling. You'll want to print it and frame it and kiss it daily. It's truly a remarkable piece of legal literature.

But, all gay things must come to an end. This Monday, a stay was issued by the Supreme Court (SCOTUS), putting a halt to marriages until a federal appeals court can have its say. Presumably, the issue before SCOTUS is how robust the rights of states should be to limit marriages, especially when it comes to the limitations of those rights to its citizenry going into unequal and irrational grounds. But, SCOTUSblog says it better:

The order appeared to have the support of the full Court, since there were no noted dissents. The ruling can be interpreted as an indication that the Court wants to have further exploration in lower courts of the basic constitutional question of state power to limit marriage to a man and a woman. Had it refused the state’s request for delay, that would have left at least the impression that the Court was comfortable allowing same-sex marriages to go forward in the thirty-three states where they are still not permitted by state law.
The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.

The much more interesting legal twist in all of this is that the governor of that state, Gary Herbert, has announced that the over 1,000 same-sex marriage licenses that were obtained will not be recognized until/unless the state government is forced to do so by a federal appeals court or the SCOTUS.

"Based on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice," said the governor's chief of staff, Derek Miller, in a letter to cabinet officials obtained by CNN. "Please understand this position is not intended to comment on the legal status of those same-sex marriages — that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages."

The Attorney General in question is a man named Sean Reyes, who has pledged to spend upwards of $2 million of tax payer's money in order to fight equality from becoming the law of the land in his state, saying he will do "whatever it takes". That amount of money has already been approved by chief legislators for the state.

However, if I may offer a little legal advice to the great and mighty Governor and his compatriots: This decision was already decided. The case of Hollingsworth v. Perry was found, under strict scrutiny, in favor of the defendants who wished to overturn the California law, known as Proposition 8, which took away the rights of its gay and lesbian citizens to marry.

What was found is that voters cannot take away the rights of citizens once they have been given based on "conjecture, speculation, and [fear]." No matter how immoral the majority finds it to be, unless there is legal evidence to prove that a minority group should not have equal protection under the law, then you cannot take those rights away.

This was all decided last summer. Less than a year ago. Surely the Utah legal team knows this.

You cannot give the right to marry to the citizenry of Utah, put a stay on it, all the while invalidating the legal standing of those marriages which were done during the time it was legal. That didn't even happen in California during the Prop 8 trial!

The Governor is attempting to fight a losing legal battle, and the attempt to legally invalidate those marriages is going to be the nail in the coffin for bigotry in that state. It should be easily overturned in the courts, validating the 1,000+ marriages that happened. This may very well also lead to a sweeping SCOTUS decision that will decide marriage for the country, though the high court seems very unwilling to leap at that opportunity when it is presented.

What do YOU expect to happen in this case? Do you think it could lead to marriage equality nationwide? Exactly how dumb is the Utah Attorney General and/or Governor's office that they seem to conveniently forget precedent from less than a year ago?